Defining the Rights and Role of a Guardian Ad Litem
A Guardian ad Litem (or “GAL”) is a court-appointed neutral who serves to represent the interests of the child. The GAL makes recommendations to the Court with respect to custody and parenting time matters. A GAL can be appointed either permissively or mandatorily. A permissive appointment occurs when either or both parties request a GAL and custody or parenting time is at issue. A mandatory appointment occurs when the Court has reason to believe that a minor child is a victim of domestic abuse or neglect. This includes Order for Protection proceedings.
Abuse is defined as any injury inflicted on a child by a person responsible for the child’s care, other than by accidental means, or any injury that cannot reasonably be explained by the child’s history of injuries.
Neglect is defined as failure by a person responsible for the child’s care to supply the child with necessary food, clothing, shelter, or medical care, or failure to protect a child from conditions or actions that endanger the child’s physical or mental health. Neglect also includes: abandonment; a child who is without proper parental care because of faults or habits of the parent or guardian; a child who is without necessary subsistence education or other necessary care for the child’s physical or mental health or morals; a child who is without the special care made necessary by his physical or mental condition because a parent or custodian neglects or refuses to provide it; a child who is medically neglected; a child whose occupation, behavior, condition, environment, or associations are injurious or dangerous to himself or others; a child who is living in a foster care facility that is not licensed as required by law; a child whose parent, guardian, or custodian has made arrangements for his placement in a manner detrimental to the welfare of the child.
A GAL has the following duties and responsibilities:
- Conduct an independent investigation to determine the facts relevant to the situation of the child and the family, which must include, unless specifically excluded by the court, reviewing relevant documents; meeting with and observing the child in the home setting, and considering the child’s wishes, as appropriate; and interviewing parents, caregivers, and others with knowledge relevant to the case;
- Advocate for the child’s best interests by participating in appropriate aspects of the case and advocating for appropriate community services when necessary;
- Maintain confidentiality of information related to a case, with the exception of sharing information as permitted by law to permit cooperative solutions that are in the best interests of the child;
- Monitor the child’s best interests throughout the judicial proceeding; and
- Present written reports on the child’s best interests that include conclusions and recommendations and the facts upon which they are based.
A GAL has the following rights under the law:
- Access to the child or incompetent adult including meeting with the child alone …as well as access to all information relevant to the child’s or incompetent adult’s and family’s situation which is accessible under applicable state and federal laws.
- To be furnished copies of all pleadings, documents, and reports by the party which served or submitted them. A party submitting, providing, or serving pleadings, documents, or reports shall simultaneously provide copies to the guardian ad litem.
- To be notified of all court hearings, administrative reviews, staffing, investigations, dispositions, and other proceedings concerning the case. Timely notice of all court hearings, administrative reviews, staffing, investigations, dispositions, and other proceedings concerning the case shall be provided to the guardian ad litem by the party scheduling the proceeding.
- To participate in all proceedings through submission of written and oral reports and may initiate and respond to motions.
Additionally, a GAL is prohibited from contacting the Court except for procedural matters, but they may have separate conversations with each parent and their counsel. Often, the parties and their attorneys, or the Court, may delegate additional duties to the GAL, such as recommend certain evaluations, exams, or reports, or recommend the use of a neutral or evaluator.
If the child is made a separate party to a parentage proceeding, the GAL will also be granted party-status. In this case, the GAL’s rights are expanded to include:
- Legal representation;
- Be present at all hearings;
- Conduct discovery;
- Bring motions before the court;
- Participate in settlement agreements;
- Subpoena witnesses;
- Make argument in support of or against the petition;
- Present evidence;
- Cross-examine witnesses;
- Request review of the referee’s findings and recommended order;
- Request review of the court’s disposition upon a showing of a substantial change of circumstances or that the previous disposition was inappropriate;
- Bring post-trial motions; and
- Appeal from orders of the court.
If you are not represented in a custody dispute and believe a GAL should be appointed to represent your child’s interests, contact Heimerl & Lammers family department today at (612) 294-2200.